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In the Wake of War [Footnotes]

September-October 2010

Because “In the Wake of War” has been excerpted from a longer text, the numbering of the footnotes that follow does not correspond precisely to that in the Frieds’ book, and in some cases the text of a note has been slightly altered from that of the original note.


[1] The tension between private morality and public responsibility has been much discussed. For Michael Walzer, the dilemma of dirty hands is that moral beliefs must sometimes be overridden, "a painful process which forces a man to weigh the wrong he is willing to do in order to do right." The dilemma may exist in private life, "[b]ut the issue is posed most dramatically in politics for the three reasons that make political life the kind of life it is, because we claim to act for others but also serve ourselves, rule over others, and use violence against them." See his article "Political Action: The Problem of Dirty Hands," Philosophy and Public Affairs, vol. 2 (1973), pp. 160, 174. Max Weber describes "the abysmal contrast between conduct that follows the maxim of an ethic of ultimate ends—that is, in religious terms, 'The Christian does rightly and leaves the results with the Lord'—and conduct that follows the maxim of an ethic of responsibility, in which case one has to give an account of the foreseeable results of one's actions." Despite recognizing that these are not absolute contrasts, he nonetheless recognizes them as framing an ethical paradox: "He who seeks the salvation of his soul, of his own and of others, should not seek it along the avenue of politics." See his "Politics as a Vocation," in From Max Weber: Essays in Sociology, H. H. Gerth and C. Wright Mills, trans. (New York: Oxford University Press, 1946), pp. 126, 120. Thomas Nagel has recognized a similar distinction as relevant to distinguishing personal and public obligations: the distinction between "concern with what will happen and concern with what one is doing." Although he also recognizes that public office carries with it "special obligations" that reduce a politician's right to consider personal or more general moral obligations, he defines limits on a politician's obligations in terms of public morality. See Nagel's "Ruthlessness in Public Life," in Mortal Questions (New York: Cambridge University Press, 1979), pp. 83, 89. János Kis, Politics as a Moral Problem (Budapest and New York: Central European University Press, 2008), especially chapters 8 and 9, combines a scholar's survey of these writings with a philosopher's probing, even relentless, analysis of the problem. The work is exemplary.

 

[2] Aristotle, Politics, bk. 1. Aristotle states, "A complete community…comes to be for the sake of living, but it remains in existence for the sake of living well." Ibid., ch. 2, 1252b28–29, p. 3.

 

[3] Five days after 9/11, Vice President Cheney described the administration's response as a move to "the dark side." He said, "We've got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies." Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008) , p. 9. Other members of the administration echoed this idea: Cofer Black, the director of the CIA's Counterterrorist Center, stated, "[A]fter 9/11 the gloves come off." Joint House/Senate Intelligence Committee Hearing, Testimony of Cofer Black (September 26, 2002).

 

[4] Niccolo Machiavelli, The Prince, [1532] Mark Musa, trans., (New York: St. Martin's Press, 1964), ch. 15, 127.

 

[5] Here is what the Supreme Court of Israel had to say on the subject: "We are aware that this decision [limiting possible interrogation techniques] does not ease dealing with that reality [of terrible situations facing the security forces]. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although, a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component of its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties." Justice Aharon Barak, Israeli Supreme Court, Public Committee Against Torture in Israel v. Israel, 53(4) P.D. 817, at p. 845.

 

[6] See Sidney Blumenthal, "Meek, Mild and Menacing," Salon.com, January 12, 2006, at www.salon.com/opinion/blumenthal/2006/01/12/alito_bush/.

 

[7] To the extent that the argument is a utilitarian one, the actor is left unable to even consider his moral intuitions. Bernard Williams describes the situation of "Jim," a man faced with a classic utilitarian dilemma of killing one man to save many. Williams argues that the utilitarian's appeal for Jim to overcome his "self-indulgent squeamishness" asks Jim to view his emotional experience of the act's wrongness not as a moral question, but instead merely as an unpleasant experience that should be given little weight. "The reason why the squeamishness appeal can be very unsettling, and one can be unnerved by the suggestion of self-indulgence in going against utilitarian considerations, is not that we are utilitarians who are uncertain what utilitarian value to attach to our moral feelings, but that we are partially at least not utilitarians, and cannot regard our moral feelings merely as objects of utilitarian value…to come to regard those feelings from a purely utilitarian point of view, that is to say, as happenings outside one's moral self, is to lose a sense of one's moral identity; to lose, in the most literal way, one's integrity." "A Critique of Utilitarianism," in Utilitarianism: For and Against, J. J. C. Smart and Bernard Williams, eds. (Cambridge: Cambridge University Press, 1973), p. 98.

 

[8] Compare, for example, Martin Luther King's Letter from the Birmingham Jail (San Francisco: Harper, 1994) with Vaclav Havel's 1989 address, "The Declaration of the Civic Forum by Representative Vaclav Havel on Wenceslas Square," in Making the History of 1989, Item #509, available at http://chnm.gmu.edu/1989/items/show/509. King invokes the Constitution and lawmaking processes in arguing for a moral responsibility to disobey unjust laws, whereas Havel rejects the system itself in declaring "the certainty that there is no return to the previous totalitarian system of government, which led our country to the brink of an absolute spiritual, moral, political, economic, and ecological crisis."

 

[9] See Gregory Fried, "By Law Unbound: Lessons on Executive Prerogative from Aristotle and Locke," Fourteenth Annual Conference for Core Texts and Courses, April 4, 2008.

 

[10] FISA Amendments Act of 2008, Pub. L. No. 110–261, 122 Stat. 2436. The Supreme Court in Ex parte Milligan did not so much deny this logic but rather declared for the future that Lincoln's original action had been illegal in the past.

 

[11] Thomas Jefferson, Letter to John B. Colvin, in Social and Political Philosophy: Readings from Plato to Gandhi, John Somerville and Ronald E. Santoni, eds. (New York: Anchor Books, 1963), p. 279.

 

[12] Gonzales appeared before the Senate Judiciary Committee to address the administration's warrantless domestic surveillance operations on February 6, 2006. Senate Judiciary Committee Hearing, Testimony of Alberto Gonzales (February 6, 2006), available at http://fas.org/irp/congress/2006_hr/nsasurv.html. Several weeks later, he sent a letter clarifying his testimony. Charles Babington and Dan Eggen, "Gonzales Seeks To Clarify Testimony on Spying," Washington Post, March 1, 2006, p. A8.

 

[13] Jack Goldsmith makes this case vividly, showing how the use of "lawfare" has come to intimidate governmental officials and how it may dissuade promising men and women from serving their country, given the reasonable fear that if they engage in important but controversial work, they could face financially crushing legal action or even jail. See The Terror Presidency, pp. 53-70.

 

[14] For example, the Civil Liberties Act of 1988 authorized payments for victims of the internment program and "acknowledged the fundamental injustice of the evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II." 50 U.S.C. app. 1989 (2000).

 

[15] Chris Hastings, "Churchill Wanted Hitler Sent to the Electric Chair," Telegraph, January 1, 2006, p. 12.

 

[16] The Khmer Rouge prosecution was also a travesty. Millions dead, but only five indicted!

 

[17] William Ranney Levi, "Interrogation's Law," 118 Yale Law Journal L.J.1434 (2009).

 

[18] Ibid., 1466.

 

[19] This was of course Goering's complaint at Nuremberg. See Gary Bass, Stay the Hand of Vengeance (Princeton: Princeton University Press, 2000), for a counterargument to Goering. See also Nir Eisikovits, "Transitional Justice," in the Stanford Encyclopedia of Philosophy, available online at http://plato.stanford.edu/entries/justice-transitional/.

 

[20] Oren Gross, "The Prohibition on Torture and the Limits of Law," in Torture: A Collection, Sanford Levinson, ed. (New York: Oxford University Press, 2004).

 

[21] Robert Bolt, A Man for All Seasons: A Play in Two Acts (New York: Random House, 1962), p. 66.